George F. Will on health reform's constitutional problems

http://www.washingtonpost.com/wp-dyn/content/article/2009/11/18/AR2009111802697.html

Democrats' health bills depend on forcing individuals to buy insurance or face severe fines or imprisonment. In 1994, the Congressional Budget Office said forcing individuals to buy insurance would be "an unprecedented form of federal action," adding: "The government has never required people to buy any good or service as a condition of lawful residence in the United States."

This year, the Congressional Research Service delicately said "it is a novel issue whether Congress may use the [commerce] Clause to require an individual to purchase a good or service." Congress has the constitutional power to "regulate commerce . . . among the several states." But a Federalist Society study by Peter Urbanowicz and Dennis Smith judges it perverse to exercise coercion under the commerce clause "on an individual who chooses not to undertake a commercial transaction." As Sen. Orrin Hatch (R-Utah) says, there is "a fundamental difference between regulating activities in which individuals choose to engage" -- e.g., drivers can be required to buy auto insurance -- "and requiring such activities" just because an individual exists.

House Majority Leader Steny Hoyer (D-Md.) says Congress can tax -- i.e., punish -- people who do not buy insurance because the Constitution empowers Congress to tax for "the general welfare." So, could Congress tax persons who do not exercise or eat their spinach?

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